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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MICHAEL H. BOSTRON and MAURICE R. duBOIS Plaintiffs vs. KENNETH S. APFEL, et al. Defendants

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MEMORANDUM AND ORDER As the Court has previously noted, there has been extensive pretrial litigation in this case. Prior rulings of the Court

have discussed the background facts in some detail, as well as the applicable principles of law. In its Memorandum and Order of December 2, 1999, the Court denied plaintiffs' motion in limine and granted in part and denied in part defendants' motion in limine. Following this

ruling, the Court granted leave to defendants to file a motion for partial summary judgment challenging claims made by

plaintiffs which were not consistent with prior rulings made by the Court or with the evidence produced by way of discovery. Presently pending before the Court is defendants' motion for

partial summary judgment.1 Defendants contend that on the record before the Court, they are entitled to the entry of judgment in their favor as to sixty-nine of the eighty-four vacancy

announcements alleged by plaintiff Bostron to be at issue in this case. In support of that motion, defendants have submitted

a memorandum of law and numerous exhibits including several declarations. Plaintiffs in turn have filed a memorandum in

opposition to defendants' motion for partial summary judgment and in support of that opposition have submitted to the Court various exhibits. Defendants in turn have replied to

plaintiffs' opposition.

The issues have been fully briefed by See

the parties, and no hearing is necessary for a decision. Local Rule 105.6.

For the reasons stated herein, defendants'

motion for partial summary judgment will be granted in part and denied in part. I Background As this Court has previously held, plaintiffs Bostron and duBois may present to the jury at the trial of this case claims that they were discriminatorily denied promotions because of their sex and/or race. There has been extensive pretrial

discovery in the case directed in large part to a determination of the promotional positions at issue. To prevail, each

plaintiff in this case must establish a
1

prima facie case of

Defendants' motion seeks dismissal of only certain claims asserted by plaintiff Michael Bostron. Defendants have not challenged the three remaining claims of Maurice du Bois, the only other plaintiff in the case. 2

discriminatory failure to

promote as to each position sought by him.

Each plaintiff must

prove (1) that he is a member of a protected group; (2) that he applied for the position in question; (3) that he was qualified for the position; and (4) that he was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Carter v. Ball, 33 F.3d 450, 458 (4th Cir.

1994); McNairn v. Sullivan, 929 F.2d 974, 977 (4th Cir. 1991).

The promotional positions sought by plaintiff duBois are only three in number. there is They have been properly identified, and Plaintiff duBois

evidence of record to support them.

may at the trial seek recoveries for his non-selections for the VAN M-812 position, for the VAN M-815 position and for the VAN M-859 position.2 A recurring problem during pretrial proceedings has been the identification of the numerous promotional positions which

plaintiff Bostron sought and which he would be entitled to litigate in the jury trial. This problem has arisen because of

the very large number of positions claimed by plaintiff Bostron to be at issue and because of the lengthy period of time during which he allegedly sought promotions to these positions.

Bostron has alleged that the discriminatory denials occurred over a period of thirteen years from April of 1985 until April

2

VAN is the acronym for "Vacancy Announcement Number." 3

of 1998. From time to time during pretrial proceedings, Bostron and his counsel have not been sure of the number of promotional positions to which he previously applied. At the hearing held

on July 9, 1999, counsel for Bostron stated that there were fifty-six positions at issue. At other times, counsel has Finally, after had filed

indicated that there were more than a hundred.3 discovery had been closed and after the

parties

motions in limine, counsel for Bostron submitted to the Court a chart listing some eighty-four positions claimed to be at issue in this case. Plaintiff Bostron has now claimed that, while employed by the Social Security Administration (the "SSA"), he was, between of 1985 and July of 1998, discriminatorily denied

April

promotions to eighty-four separate positions, herein referred to as VANs. defendants By way of their motion for partial summary judgment, contend that Bostron should be precluded from

proceeding to trial on sixty-nine of the eighty-four VANs as to which Bostron claims he was discriminatorily denied promotions. In his opposition to defendants' motion, Bostron has conceded that he cannot establish a prima facie case and proceed to trial with respect to the following seven VANs: V-201, E-814, B-2163, M-750, X-332, H-1776 and D-2444. Accordingly, arguments However,

concerning these VANs will not
3

be addressed herein.

In his Declaration of January 28, 2000, Bostron has stated that during the last 18 years he has applied for over 300 jobs, including those posted by the Social Security Administration and by other government agencies. 4

Bostron

has

opposed

defendants'

motion

insofar

as

to

the

remaining sixty-two challenged VANs are concerned.

II Discovery In opposing defendants' pending motion for partial summary judgment, plaintiff Bostron first argues at some length that the motion should which be denied not because provided defendants to the have relied on

evidence

was

plaintiffs

during

discovery in this case.

According to Bostron, he has, because

of defendants' failure to comply with discovery requests, been deprived of an opportunity to investigate matters raised by defendants and to produce additional evidence to dispute

defendants' contentions.

There is no merit to these arguments.

There has been extensive pretrial discovery in this case, and a massive record has been developed by the parties. The

Court is satisfied that the evidence relied upon by defendants in support of their pending motion for summary judgment should not be excluded on the ground that defendants have failed to

comply with Bostron's discovery requests. Both sides have been hampered in preparing for trial by their inability to discover pertinent evidence which would

support their claims and defenses.

However, the fact that

relevant evidence is no longer available is attributable to Bostron's attempt in his of complaint promotional 5 to challenge made as by

discriminatory

hundreds

decisions

defendants over a period of some thirteen years. Many pertinent documents have been routinely destroyed by the SSA pursuant to established agency practice. Other

documents and information were available to Bostron at the time when he applied for a particular promotional position. Bostron

kept contemporaneous records relating to the various positions he sought. evidence to He cannot now complain that documentary and other support his claims has not been provided by

defendants when such information was available to him or should have been known by him when the adverse promotional decision was made. Bostron complains that he has not been supplied with

information indicating that some of the VANs required that the applicant be "highly qualified" and that he fell "outside the area of consideration" for other VANs. Certainly, before

applying for positions of this sort, Bostron and every other applicant had the responsibility for determining the particular qualifications "highly for the job, including and whether he there or was a

qualified"

requirement

whether

she

fell

outside the area of consideration for the VAN. Indeed, Bostron testified at his deposition that he knew that restrictions applied to some of the positions sought by him and that he was outside the area of consideration for others. Bostron can

hardly now claim that he has been prejudiced because he did not know of those requirements before filing his applications. Moreover, the record here discloses that counsel for

plaintiffs was offered the opportunity to obtain the information 6

which Bostron now claims was not provided to him.

During the

course of discovery in the case, a three-step procedure for obtaining relevant information was agreed upon by counsel for the parties. As the third step, Bostron's attorney was offered

the opportunity to depose designees of the SSA who would be able to provide relevant information pertaining to particular VANS at issue. However, Bostron's attorney did not avail himself of

such opportunity and never requested the scheduling of the depositions in question. Under all the circumstances here, the Court cannot agree that defendants' pending motion should be denied because Bostron has not been provided with relevant and necessary discovery.

III Discussion (a) Bostron Fell "Outside the Area of Consideration" The SSA is permitted to advertise and restrict eligibility for promotion to a position in the specific department or area in which the vacancy lies. Where such restrictions are

implemented, persons "outside the area of consideration" who nonetheless apply for the position may not be considered for the VAN in question. The procedures outlining the implementation of

restrictions for promotion to a particular VAN are set forth in the SSA Headquarters Management Officials Promotion Plan.

Defendants contend that Bostron cannot establish a prima 7

facie case of discrimination for six of the VANs4 as to which he was allegedly discriminatorily denied promotions because he fell "outside the area of consideration" for such VANs and because he was therefore not qualified to be selected for those VANs. Defendants further argue that Bostron cannot demonstrate that defendants' decision to restrict eligibility for the six VANs at issue was made for a discriminatory purpose. Accordingly,

defendants maintain that Bostron cannot satisfy the third and fourth prongs of his prima facie case insofar as the six VANs at issue are concerned. The Court would agree.

Bostron acknowledges that he indeed fell "outside the area of consideration" for the six VANs at issue. Certainly, Bostron

was or should have been well aware of this fact at an early stage of this litigation. Had he desired more information

concerning the basis of defendants' decision to restrict these VANs, he could have conducted discovery and further investigated the facts surrounding the SSA's decision to create the

restrictions. is now closed.

However, Bostron failed to do so, and discovery Accordingly, Bostron cannot now complain that he

was prejudiced by defendants' decision to challenge these claims on the ground that he fell "outside the area of consideration." Any prejudice suffered by Bostron in this regard is in fact the direct consequence of his decision not to conduct adequate discovery in this area. There is no merit to Bostron's contention that defendants'

The six VANs challenged on this ground are as follows: N242, H-1724, A-571, H-1782, U-222 and U-194. 8

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failure to follow proper procedures when deciding to restrict these six VANs precludes dismissal of them. he fell In conceding that

"outside the area of consideration" for the six VANs,

Bostron in effect admits that he was not qualified for the positions. Whether or not, as argued, proper procedures were

not followed by defendants in deciding to restrict these six VANs, Bostron has failed to point to evidence of record

indicating that his exclusion from the Best Qualified List ("BQL") for these VANs was the result of any discriminatory animus on the part of the defendants. Bostron was not on the

BQLs for these six VANS because he was not qualified for the positions. There is no evidence of record suggesting that the

SSA's decision to restrict the "area of consideration" for the six VANs was undertaken for a discriminatory purpose. In the

absence of any such evidence, it is apparent that Bostron cannot satisfy the third and fourth prongs of his prima facie burden as to these VANS. Accordingly, judgment will be entered in favor

of defendants as to Bostron's claims based on these six VANs. (b) Priority Consideration Where some error occurs in the course of the selection process for a VAN which causes an applicant to be omitted mistakenly from the BQL for the VAN and where such mistake is brought to the attention of the SSA, the SSA provides such applicant with a "priority consideration." A "priority

consideration" permits an applicant who was mistakenly omitted from the BQL of a VAN to be given priority consideration for a 9

future position of the applicant's choice but does not allow such applicant to be considered for the VAN for which the initial error occurred. Bostron was erroneously omitted from

the BQL for two VANs,5 and defendants provided Bostron with "priority consideration" for future positions after becoming aware of both errors. As noted by defendants, since Bostron was not on the BQL for each of the two VANs at issue, he could not have been selected for either one of those positions. Defendants argue that

Bostron has not pointed to any evidence in the record indicating that the errors which prevented Bostron from making the BQL as to the two VANs at issue were the result of any discriminatory animus. Having failed to produce such evidence, Bostron,

according to defendants, should not be allowed to proceed to trial on these two VANs because he cannot satisfy the fourth prong of his prima facie burden. Bostron's claims arising under the two VANs in question will be dismissed. While Bostron is correct in asserting that he has

provided the Court with evidence indicating that he should have been included on the BQLs and that he was therefore qualified for the positions in question, he has failed to point to facts in the record indicating that his erroneous omission from the BQLs for these two VANs was based on unlawful discrimination. The consequence of this failure is that Bostron will be unable to satisfy the fourth prong of his prima facie burden.

The VANs as to which Bostron was erroneously omitted from the applicable BQL were as follows: G-2631 and G-2831. 10

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Accordingly, Bostron's claims based on these two VANs will be dismissed. (c) Bostron's Presence on BQL Unconfirmed It is the SSA's established practice to retain documents, such as the BQLs and all applications submitted seeking

placement in a VAN (the "VAN Packages"), for a period of two years after the position has been filled, As a after which of the this

documents

are

routinely

destroyed. 6

result

practice, SSA has destroyed many of the VAN Packages relating to VANs as to which Bostron is here seeking redress. As previously noted, the second prong of Bostron's prima facie burden requires that he prove that he applied for each VAN in question and the third prong of the burden requires him to demonstrate that he was on the BQL for each VAN at issue and was therefore qualified for the position in question. 33 F.3d at 458; McNairn, 929 F.2d at 977. See Carter,

Bostron has testified

that he applied for each of the thirty-four VANs7 challenged here by defendants. He has therefore satisfied the second prong of

There is no merit to Bostron's contention that the SSA's document destruction practice violates federal regulations. The thirty-four VANs are as follows: G-2416, G-2445, Q-34, M-492, P-593, M-503, U-83, X-223, V-186, H-1567, R-832, V-202, U-109, M-572, E-792, Q-90, P-809, H-1611, A-262, Y-60, N-237, V215, T-329, I-687, H-1625, T-340, T-341, Z-304, M-681, V-231, N248, N-249, H-1641 and T-469. Defendants also challenge claims arising out of VANs V-201, E-814 and B-2163 on these same grounds, but Boston has stipulated that he will not proceed to trial on these VANs and accordingly they are not here addressed. 11
7

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his

burden.

However,

competent

evidence

does

not

exist

indicating that Bostron was on the BQL for each of the thirtyfour VANS at issue. Since he has not shown that he was

qualified for the positions in question, Bostron may not present to the jury his claims which are based on these thirty-four VANS. The VAN Packages which would show whether Bostron was on the BQL for these thirty-four VANs has in accordance with

established SSA practice been destroyed.

Bostron himself does When asked

not know whether he was on the BQLs for these VANs.

during his deposition whether he ever saw "the list of those who were designated as best qualified for any of the [VANs as to which] you were unsuccessful in obtaining," Bostron responded that he had not. Bostron has asserted that it was his regular

practice when he applied for a VAN to contact the personnel specialist of the SSA assigned to process the application in order to determine whether he had made the BQL for such VAN. However, there is no evidence that he was ever told by any one of these personnel specialists that he was on the BQL for the VANs in question. Bostron assumed that he made the BQLs for

these VANs because he was never told by any of these personnel specialists that he had not made the BQLs. Indeed, based on

such assumptions, Bostron prepared written records indicating that he did in fact make these BQLs.8 He relies on those records

Although requested during discovery to do so, Bostron never produced to defendants the records now submitted with his opposition to the pending motion. 12

8

as

evidence

demonstrating

that

he

was

qualified

for

each

position. The assumptions made by Bostron are unwarranted. The fact

that he was never told that he was not on these BQLs does not satisfy the burden imposed on him by the applicable law that he must present competent evidence that he was in fact on each BQL and was therefore qualified for the position. Neither his

testimony nor his contemporaneous records constitute competent evidence that he was qualified for any of the thirty-four VANs at issue. Boston's reliance on his own contemporaneous records is misplaced. These records are self-serving and constitute

hearsay which is inadmissible pursuant to Rule 801(c), F.R.E. They are therefore not competent evidence which would support Bostron's claims. Bostron argues that the records which were kept by him and which purport to show that he made the BQLs do not constitute hearsay. According to Bostron, these records are admissions by

a party opponent and are competent evidence pursuant to Rule 801(d)(2). records and There the is no merit to this by him argument. in Bostron's to

documents

filed

opposition

defendants' pending motion do not indicate that he was ever told by an agent or official of the SSA that he had made the BQLs for the thirty-four VANs at issue. Bostron contends that the

failure of unidentified officials at the SSA to inform him that he had not made the BQL for the VANs constituted an admission by the SSA that he had in fact made the BQL in question. 13 But Rule

801(d)(2) requires as a prerequisite to its applicability a statement asserting the fact of the matter which can serve as a basis for the admission. Here, Bostron has failed to point to

a single statement made by an SSA official that he was included on any one of the BQLs for the thirty-four VANs at issue. Reliance on their silence does not amount to an admission. Since Bostron has not pointed to any statement made by a

representative of the SSA which would constitute an admission under Rule 801(d)(2), he cannot rely on that Rule in arguing that his records constitute competent evidence of the fact that he was qualified for the positions in question. On the record here, this Court concludes that Bostron's contemporaneous records are inadmissible hearsay. As defined by

Rule 801(c), "hearsay" is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." As

noted, Bostron himself admitted in his deposition testimony that he had not seen the BQLs for the thirty-four VANs at issue. Accordingly, his records asserting such facts cannot have been based on his own personal knowledge. Since he had never been so informed by a representative of the SSA that he had made the BQLs and since he had no personal knowledge of such facts, his contemporary records amount to inadmissible hearsay evidence. Bostron has argued that, pursuant to the SSA practice known as the "Automatic Best Qualified List" and pursuant to records produced by defendants for the first time, he would

automatically appear on each BQL for which there were fifteen or 14

fewer total applicants.

According to Bostron, he was under this

practice automatically qualified for the positions covered by seventeen of the VANs challenged by defendants. disagree. SSA regulations required that a BQL for a VAN should include the fifteen highest ranked qualified applicants, plus all others who achieved a ranking equal to that of the fifteenth highest ranked qualified applicant. In situations where less than The Court must

fifteen applicants sought placement on the BQL for a particular VAN, all qualified applicants were included on the BQL for the VAN pursuant to the "Automatic Best Qualified List" practice. Bostron's reliance on this practice must fail because he has not produced evidence indicating that he was a qualified applicant. Under the practice, every applicant irrespective of his or her qualifications would not be included on the list simply because fifteen or fewer persons had applied. The personnel

specialists who created the BQLs would always make an initial cut and exclude persons who did not meet minimal qualifications for the position. Bostron has produced no evidence indicating Rather, he relies on the

that he survived this initial cut.

assumption that since he was not advised that he was not a qualified candidate, he automatically was on BQLs as to which there were fifteen or fewer total applicants. herein, such an assumption is unwarranted As discussed and does not

constitute competent evidence that Bostron made the BQLs in question. Accordingly, his reliance on the SSA's "Automatic

Best Qualified List" practice is misplaced. 15

For all these reasons, plaintiff Bostron may not present to the jury at the trial claims based on the thirty-four VANs at issue. Evidence does not exist indicating that Bostron was qualified for the positions in question. (d) Bostron was not "Highly Qualified" For a potential candidate to be selected for some particular VANs at the SSA, the candidate not only has to appear on the BQL for such VAN but also has to be ranked as "highly qualified." Since 1993, the SSA Headquarters Management Official Promotion Plan provided that persons could be rated "highly qualified" to be selected for a VAN with the high qualification restriction only if fifty percent of their rating points for the BQL came from experience and/or performance ratings, depending on the weights and factors for the position. A candidate making the

particular BQL who was not also rated "highly qualified" could not be selected for a VAN with the high qualification

restriction unless there were no candidates on the BQL who achieved the "highly qualified" ranking. Defendants argue that, although Bostron made the BQL for six VANs,9 those particular the VANs required in that he be "highly to

qualified"

for

promotions

question.

According

defendants, since Bostron has not shown that he was highly

The six VANs at issue here are as follows: R-1045, G-2825, S-343, W-1025, G-2837 and G-2838. Defendants also maintain that Bostron was not rated "highly qualified" for VAN X-332, but Bostron has conceded that he cannot establish a prima facie case as to that VAN. 16

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qualified, he cannot satisfy his prima facie burden as to these six VANs. This Court would agree.

Bostron contends that in order to satisfy the third prong of his prima facie burden, all he must demonstrate is that he was "minimally qualified" for the VAN in question. Bostron

maintains that his presence on the BQL for each of the six VANs, irrespective of the "highly qualified" requirement, sufficiently satisfies his burden of demonstrating that he was qualified for those VANs. This argument is meritless.

Bostron undoubtedly knew when he applied for these six VANs that they possessed the high qualification restriction. Indeed,

Bostron does not contest the fact that a high qualification restriction existed for these six VANs. Rather, he merely

asserts that he was "minimally qualified" for the six VANs in question, as demonstrated by his having made the BQL for the VANs, and that such factor alone is sufficient to satisfy his prima facie burden. This argument has no merit. The third

prong of his prima facie burden requires that Bostron show that he was "qualified" for the positions in question. Proof that he

was minimally qualified for these promotions is insufficient. If Bostron was not rated "highly qualified" for these six VANs and if other applicants Bostron for these VANs be were rated "highly for the

qualified," positions.

then

could

not

selected

Accordingly, he cannot be considered to have been

qualified for these six VANs. Bostron complains that defendants' failure to provide him with information concerning the high qualification restriction 17

for these VANs somehow caused him prejudice. failure is of no consequence here. Before

This alleged applying for a

position, Bostron had the responsibility of determining the qualifications for the job. case to demonstrate that The burden is on Bostron in this he has actionable claims of

discrimination as to all of the positions alleged, including those which had high qualification restrictions. Having failed

to demonstrate that he was in fact qualified for the six VANs with high qualification restrictions and having further failed to contest the existence of these restrictions, Bostron cannot establish a prima facie case of discrimination as to these six VANs. Accordingly, the Court will dismiss Bostron's claims

based on these six VANs. (e) VANs H-1776 & H-1766 Bostron has stipulated that he will not pursue claims at trial based on VAN H-1776, a GS-7 position which did not

constitute a promotion but which was mistakenly listed by him as the result of a typographical error. However, Bostron alleges

that the correct VAN at issue is VAN H-1766 and that he intends to proceed to trial on that VAN. Defendants have not contended that Bostron did not apply for and was not qualified for VAN H-1766. Accordingly, Bostron may

present to the jury his claim based on VAN H-1766. (f) Belated Requests for Counseling Defendants request that this Court preclude Bostron from 18

proceeding to trial on claims arising from two VANs10 as untimely because Bostron's non-selection for these VANs occurred in 1985 and because Bostron's request for EEO counseling for these VANs occurred thirteen years later in 1998. See 29 C.F.R.

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